Assessment of Telstra's Draft Migration Plan

Assessment of Telstra's draft Migration Plan

Required Measures

(2) Managed disconnection of copper services

(3) Managed disconnection of HFC services

(4) Building copper paths to supply special services and special service inputs

(6) NBN Information Security Plan

Final decision

February 2013

© Commonwealth of Australia 2013

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www.accc.gov.au

List of acronyms and other terms

Added Premises has the meaning given in clause 15.2(a) of the migration plan

Affected Premises has the meaning given in clause 15.3(a) of the migration plan

ACCAN Australian Communications Consumer Action Network

ACCC Australian Competition and Consumer Commission

August 2011 Discussion Paper ACCC’s Assessment of Telstra’s Structural Separation Undertaking and draft Migration Plan, Discussion Paper, August 2011

Definitive Agreements Each of:

(a) the Implementation and Interpretation Deed dated 23 June 2011 and made between Telstra and NBN Co;

(b) the Subscriber Agreement dated 23 June 2011 and made between Telstra and NBN Co;

(c) the Infrastructure Services Agreement dated 23 June 2011 and made between Telstra and NBN Co;

(d) the Access Deed dated 23 June 2011 and made between Telstra and NBN Co; and

(e) any other documents agreed by NBN Co and Telstra to be Definitive Agreements

Direct Special Service Those carriage services set out in the ‘Access Service‘ column of Table 1 and 2 in Schedule 4 of the migration plan, including:

(a)  any Product Bundles specified in Schedule 4 that are provided over the corresponding category of Access Service; and

(b)  any Product Bundles subsequently provided over such Access Services

Disconnection date (a) In respect of a Rollout Region, the date specified as the disconnection date for that Rollout Region in the Disconnection Schedule

(b) In respect of all Copper Services in the Fibre Footprint within a Rollout Region that are not Special Services or Added Premises, the date published by Telstra as the disconnection date for that Rollout Region in the Disconnection Schedule;

(c) In respect of Added Premises, the date determined as the disconnection date in accordance with clause 15.2 of the migration plan;

(d) In respect of a Direct Special Service or Special Service Input, the disconnection date for the applicable SS Class determined in accordance with clause 21.1 of the migration plan; and

(e) In respect of a Contracted Special Service, the date determined as the disconnection date under clause 21.12 of the migration plan

Disconnection Schedule The schedule of Disconnection Dates referred to in clause 7.1(a) of the migration plan as published by Telstra from time to time

Disconnection Protocols Schedule 1 of the Subscriber Agreement;

(the) Determination Telecommunications (Migration Plan Principles) Determination 2011

Final Decision Paper ACCC’s Assessment of Telstra’s Structural Separation Undertaking and draft Migration Plan, Final Decision Paper, February 2012

HFC Hybrid Fibre-Coaxial

In train order premises Has the meaning given in clause 15.1(b) of the Migration Plan

ITA Independent Telecommunications Adjudicator

LIC Lead-in-conduit

LOLO LinxOnline Ordering

LSS Line Sharing Service

No-order disconnection premises Has the meaning given in clause 9(5) of the Determination

NBN National Broadband Network

NBN Co NBN Co Limited

NBN Co Migration Information Has the meaning given in clause 24.1 of the migration plan

NBN ISP NBN Information Security Plan

November Discussion Paper ACCC’s Required Measures Discussion Paper, November 2012

NPAMS A Telstra network and service system

NTT NBN Transition Tool (Telstra system)

PIM NBN Co’s Public Information on Migration campaign

PSTN Public Switched Telephone Network

RFS Ready for service

Ready for Service Date (a) In relation to an Initial Release Rollout Region or Acquired Rollout Region, the date notified by NBN Co as the Disconnection Commencement Date for that Rollout Region; and

(b) In relation to any other Rollout Region, the date advised by NBN Co in a notice published on its website that Fibre Services will be able to commence to be supplied in the Rollout Region

Special Services Direct Special Services and Contracted Special Services (clause 21.12 of the migration plan)

Special Services Input ULLS or LSS certified by a Wholesale Customer as being used to provide carriage services which are Service Equivalent to Direct Special Services.

Subscriber Agreement The Definitive Agreement concluded between Telstra and NBN Co on 23 June 2011, entitled ‘Subscriber Agreement’

SSU Structural Separation Undertaking

STS Standard Telephone Service

Telstra Telstra Corporation Limited

TUSMA Telecommunications Universal Service Management Agency

TUSMA Agreement The Telecommunications Universal Service Management Agency (TUSMA) Agreement concluded on 23 June 2011 between Telstra and the Commonwealth

ULLS Unconditioned Local Loop Service

WBA Wholesale Broadband Agreement

WLR Wholesale Line Rental

Contents

1 Introduction 4

1.1 Migration plan required measures 4

1.2 Decision making framework for required measures 5

1.3 Consultation 6

2 Summary of the ACCC’s decision 8

3 Process for Managed Disconnection of Copper Services (required measure 2) 10

3.1 Regulatory requirements 11

3.2 Relevant clauses of draft required measure 2 12

3.3 Submissions received 14

3.4 ACCC views 15

4 Managed Disconnection of HFC Services (required measure 3) 23

4.1 ACCC views 23

5 Building copper paths to supply special services and special service inputs (required measure 4) 24

5.1 Regulatory requirements 25

5.2 Relevant clauses of draft required measure 4 25

5.3 Submissions received 26

5.4 ACCC views 26

6 NBN Information Security Plan (required measure 6) 30

6.1 ACCC approach to assessment of the draft NBN ISP 31

6.2 Scope of the information protected under the NBN ISP 32

6.3 Whether processes and measures for use and disclosure of NBN Co Migration Information are effective 37

6.4 Other concerns with the draft NBN ISP 43

Attachment A – Illustrative guidance to take into account the ACCC concerns 48

Attachment B - Required Measures and relevant sections of the Determination and migration plan clauses 50

1  Introduction

On 27 February 2012, the Australian Competition and Consumer Commission (ACCC) accepted Telstra’s structural separation undertaking (SSU) and approved the draft migration plan. The SSU came into force on 6March2012 and the migration plan on 7 March 2012. Further detail on the ACCC’s assessment of Telstra’s SSU and migration plan can be found in the ACCC’s February 2012 Final Decision paper —Assessment of Telstra’s Structural Separation Undertaking and draft Migration Plan, and in its August 2011 discussion paper . Both papers are available at http://www.accc.gov.au/content/index.phtml/itemId/1003999.

1.1  Migration plan required measures

Clause 5 of the migration plan provides that Telstra may develop certain disconnection measures or processes after the migration plan commences and submit them to the ACCC for approval.[1] These measures are referred to as ‘required measures’ and comprise specific disconnection processes needed to facilitate migration to the National Broadband Network (NBN) and a plan setting out how Telstra will ensure that information sourced from NBN Co under the Definitive Agreements is secured from retail business units. There are six required measures:

(1) Pull through processes, which Telstra has lodged separately as:

a. process for obtaining consents and releases from wholesale customers for NBN Co to use pull through during the connection process

b. process for notifying wholesale customers that pull through exception events have occurred.

(2) Process for managed disconnection of copper services (which are not special services) on the disconnection date.

(3) Process for managed disconnection of hybrid fibre coaxial (HFC) services.

(4) Process for Telstra to build copper paths at premises which had previously been permanently disconnected, in order to supply special services and special service inputs to that premises.

(5) Processes which will be used to manage and implement disconnection of copper services of each special service class.

(6) The NBN information security plan.[2]

The migration plan sets out the process that Telstra must follow when developing and lodging draft required measures for ACCC approval. This process requires the development of a high level road map and individual work plans for each measure. These documents are available on the Telstra Wholesale website.[3]

1.2  Decision making framework for required measures

The ACCC must approve a draft required measure if it is satisfied that it complies with the Telecommunications (Migration Plan Principles) Determination 2011 (the Determination). [4] Otherwise the ACCC must refuse to approve the draft required measure and direct Telstra to resubmit the draft required measure amended to take into account the concerns raised by the ACCC.[5]

In deciding whether to direct Telstra to resubmit a draft required measure, the ACCC must have regard to:

(i)  the costs to Telstra that would flow from the amended draft required measure;

(ii)  the effectiveness of the amended draft required measure; and

(iii)  the relative costs and benefits of amending the draft required measure.[6]

The migration plan provides further detail as to what certain measures must include in order to constitute the required measure.

The ACCC has 60 business days from the date of lodgement to approve a required measure, or otherwise direct Telstra to resubmit an amended draft. Telstra has 40 business days from receipt of such a direction to resubmit a draft required measure that addresses the concerns raised by the ACCC. These processes apply recursively.[7] Once approved, a required measure forms part of the migration plan.[8]

If, through operational experience or otherwise, an approved required measure is found to not comply with the general principles in the Determination, then the ACCC may issue a direction to Telstra to rectify the required measure to ensure that it is compliant.[9]

1.2.1 The Determination

The objectives and scope of the migration plan are defined in the Determination which includes three different types of migration plan principles:

·  General principles, which describe the overarching principles that must be met by the migration plan. These include equivalence and continuity of service objectives.

·  Specific principles, which provide further specificity regarding how some of the general principles are to be given effect in the migration plan.

·  Procedural principles, which set out the procedural provisions that must be included in the migration plan.[10]

1.3  Consultation

On 22 November 2012, the ACCC released a discussion paper on Telstra’s draft required measures 2, 3, 4 and 6. Submissions closed on 14 December 2012.

The ACCC received nine submissions in relation to the discussion paper, including a supplementary submission from Telstra. These submissions are published on the ACCC’s website.

The ACCC has had regard to all relevant submissions in forming its views on whether to approve the draft required measures.

1.3.1  Responses from end-users and consumer groups

The ACCC received three submissions from individual end-users and a submission from the Australian Communications Consumer Action Network (ACCAN).

ACCAN’s submission noted that while industry is best placed to provide views on specific processes, “consumers must be at the centre of the ACCC’s considerations on matters related to the migration of services”.[11]ACCAN submits that in considering the draft required measures, the ACCC should seek to create arrangements that “optimise the migration process for consumers. This would mean as seamless a transition of services as possible and minimised service down time for consumers.”[12]

The ACCC agrees that it is important to ensure that end-users experience minimal service disruption during the migration process. The Determination requires the migration plan to provide for the disconnection of services in a way that minimises disruption to the supply of these services, to the extent that it is in Telstra’s control.[13] The Determination also requires the migration plan to give wholesale customers the autonomy to minimise the disruption to their end-users’ services, to the greatest extent practicable.[14] For the purposes of giving wholesale customers autonomy, minimising service disruption and ensuring equivalence, the migration plan must require Telstra to have in place reasonable business practices relating to disconnection.[15]

Submissions from end-users note the importance of the NBN rollout in addressing issues with existing infrastructure, including access to high speed internet and freedom to choose retail service providers.[16] One submission also noted that the draft required measures do not include any information on end-users’ ability to decide whether to transfer their services to the NBN.[17]

2  Summary of the ACCC’s decision

The ACCC is not satisfied that draft required measures 2, 3, 4 and 6 comply with the Determination and therefore has decided not to approve them.

The ACCC directs Telstra to resubmit, within 40 business days from the date of the ACCC’s direction, the draft required measures amended to take into account the concerns outlined in this decision paper. These concerns are summarised in sections 2.1 – 2.4 below.

Chapters 3 to 6 of this decision paper detail the ACCC’s reasoning on each required measure. Each chapter sets out:

·  The context for the required measure

·  The relevant regulatory requirements under the Determination and the migration plan

·  The relevant clauses of the draft required measure

·  Submissions from wholesale customers and NBN Co provided to the ACCC in response to its November discussion paper

·  ACCC views on the draft required measure

·  The ACCC’s consideration of the factors under clause 28.2(b) of the migration plan (summarised at section 1.2 above).

Attachment A contains illustrative examples of how Telstra may address the ACCC’s concerns when amending the draft required measures.

2.1  Required measure 2

The draft required measure includes arrangements for the disconnection of no-order disconnection premises that are inconsistent with arrangements set out in the Definitive Agreements.

The draft required measure does not include sufficient detail to enable the ACCC to be satisfied that wholesale customers will receive equivalent notification of the final disconnection list as Telstra’s retail business units will receive.

The draft required measure does not commit Telstra to facilitate wholesale customer management of the migration of their end-users in a way that minimises the period of any service outage. This is because the draft required measure does not include sufficient commitments to notify wholesale customers of premises that still have active copper services in the lead up to the disconnection date for that rollout region.